EXHIBIT (a)(1)(ii)
LETTER OF TRANSMITTAL
TO TENDER OF SHARES OF COMMON STOCK
PURSUANT TO THE OFFER TO PURCHASE FOR CASH
DATED JUNE 8, 2007
BY
BELLAVISTA CAPITAL, INC.
OF
UP TO 750,000 SHARES OF ITS COMMON STOCK
AT $2.40 PER SHARE
THE TENDER OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., PACIFIC
STANDARD TIME, ON JULY 20, 2007, UNLESS THE TENDER OFFER IS EXTENDED.
TENDER OF SHARES CERTIFICATES AND THIS LETTER OF TRANSMITTAL IS TO BE MADE TO,
AND ANY QUESTIONS CONCERNING THE OFFER OR THIS LETTER OF TRANSMITTAL CAN BE
DIRECTED TO, THE FOLLOWING ADDRESS:
BellaVista Capital, Inc.
420 Florence Street, Suite 200
Palo Alto, California 94301
Telephone (650) 328-3060
Facsimile (650) 328-3066
DELIVERY OF THIS LETTER OF TRANSMITTAL AND ALL OTHER DOCUMENTS TO AN ADDRESS
OTHER THAN AS SET FORTH ABOVE, OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE
COPY NUMBER OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY
TO THE COMPANY.
THE OFFER TO PURCHASE AND THIS ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE
ACCOMPANYING INSTRUCTIONS, SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used only if certificates for shares are to
be forwarded with it for tender to the Company. If you want to retain your
shares, you do not need to take any action.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE OFFER TO
PURCHASE OR THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE COMPANY AT THE
ADDRESS OR TELEPHONE NUMBER INDICATED ON THE BACK COVER OF THE OFFER TO
PURCHASE.
LIST BELOW THE CERTIFICATE NUMBERS AND NUMBER OF SHARES TO WHICH THIS LETTER OF
TRANSMITTAL RELATES. IF THE SPACE PROVIDED BELOW IS INADEQUATE, LIST THE
CERTIFICATE NUMBERS TENDERED ON A SEPARATELY EXECUTED AND SIGNED SCHEDULE AND
AFFIX THE SCHEDULE TO THIS LETTER OF TRANSMITTAL. THE NAMES AND ADDRESSES OF THE
HOLDERS SHOULD BE PRINTED, IF NOT ALREADY PRINTED BELOW, EXACTLY AS THEY APPEAR
ON THE CERTIFICATES REPRESENTING THE SHARES TENDERED HEREBY. THE SHARES THAT THE
UNDERSIGNED WISHES TO TENDER SHOULD BE INDICATED IN THE APPROPRIATE BOXES.
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DESCRIPTION OF SHARES TENDERED
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NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN, IF BLANK,
EXACTLY AS NAME(S) APPEAR(S) ON SHARE CERTIFICATE(S) TENDERED)
[affix mailing label here]
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SHARES TENDERED
(ATTACH ADDITIONAL SIGNED LIST IF NECESSARY)
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TOTAL NUMBER
OF SHARES
SHARE REPRESENTED NUMBER OF
CERTIFICATE BY SHARE SHARES
NUMBERS CERTIFICATE(S) TENDERED*
- ------- -------------- --------
_____________ ________________ _____________
_____________ ________________ _____________
_____________ ________________ _____________
_____________ ________________ _____________
TOTAL SHARES TENDERED:
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Indicate in this box the order (by certificate number) in which shares are to be
purchased in event of proration** (attach additional signed list if necessary):
1st: _________ 2nd: _________ 3rd: _________ 4th: _________
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[ ] Check here if any certificates representing shares tendered hereby have been
lost, stolen, destroyed or mutilated. You must complete an affidavit of loss and
return it with your Letter of Transmittal. A bond will be required to be posted
by the stockholder to secure against the risk that the certificates may be
subsequently recirculated. Please contact the Company at the above number and
address, to obtain an affidavit of loss and for further instructions and as to
the determination of the requirement for posting of a bond.
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*If you desire to tender fewer than all shares evidenced by any certificates
listed above, please indicate in this column the number of shares you wish to
tender. Otherwise, all shares evidenced by such certificates will be deemed to
have been tendered. ** If you do not designate an order, and you do not check
the "Sell All or None" box below, in the event less than all shares tendered are
purchased due to proration, shares will be selected for purchase by the Company.
|_| SELL ALL OR NONE. Check this box if you wish to sell your Shares ONLY if ALL
your Shares will be purchased. If your Shares would otherwise be prorated
because more than 750,000 Shares are tendered to the Company, and this box is
checked, none of your Shares will be deemed tendered.).
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NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
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Ladies and Gentlemen:
The undersigned hereby tenders to BellaVista Capital, Inc., a Delaware
corporation ("the Company"), the above-described shares of the Company's common
stock, par value $0.01 per share, upon the terms and subject to the conditions
set forth in the Company's Offer to Purchase, dated June 8, 2007, receipt of
which is hereby acknowledged, and in this Letter of Transmittal which, as
amended and supplemented from time to time, together constitute the tender
offer. Please note that, all of the outstanding shares are now common shares. As
of September 1, 2004, all of the Company's outstanding shares of its Class A
Convertible Preferred Stock were automatically converted to common shares
pursuant to the terms of the Company's Articles Supplementary, and any
outstanding certificates for the Class A shares now represent common shares.
Subject to and effective on acceptance for payment of the shares tendered
hereby in accordance with the terms of and subject to the conditions of the
tender offer (including, if the tender offer is extended or amended, the terms
and conditions of any such extension or amendment), the undersigned hereby
sells, assigns and transfers to, or upon the order of, the Company all right,
title and interest in and to all shares tendered hereby that are purchased
pursuant to the tender offer to or upon the order of the Company and hereby
irrevocably constitutes and appoints the Company as the true and lawful agent
and attorney-in-fact of the undersigned with respect to such shares, with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to:
(a) deliver certificates representing such shares, with all
accompanying evidences of transfer and authenticity, to or upon the order
of the Company, upon payment by the Company, as the undersigned's agent, of
the purchase price with respect to such shares; and
(b) present certificates for such shares for cancellation and transfer
on the Company's books.
The undersigned hereby covenants, represents and warrants to the Company
that:
(a) the undersigned understands that tendering shares will constitute
the undersigned's acceptance of the terms and conditions of the tender
offer, including the undersigned's representation and warranty that (i) the
undersigned has a net long position in shares or equivalent securities at
least equal to the shares tendered within the meaning of Rule 14e-4 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
(ii) such tender of shares complies with Rule 14e-4 under the Exchange Act;
(b) when and to the extent the Company accepts the shares for
purchase, the Company will acquire good, marketable and unencumbered title
to them, free and clear of all security interests, liens, charges,
encumbrances, conditional sales agreements or other obligations relating to
their sale or transfer, and not subject to any adverse claim; and
(c) on request, the undersigned will execute and deliver any
additional documents the Company or the Company deems necessary or
desirable to complete the assignment, transfer and purchase of the shares
tendered hereby.
The name(s) and address(es) of the registered holder(s) should be printed,
if they are not already printed above, exactly as they appear on the
certificates representing shares tendered hereby. The certificate numbers, the
number of shares represented by such certificates, and the number of shares that
the undersigned wishes to tender, should be set forth in the appropriate boxes
above.
The undersigned understands that the Company will, upon the terms and
subject to the conditions of the tender offer, accept for payment and will pay
for up to 750,000 shares properly tendered and not properly withdrawn prior to
the expiration date under the tender offer. The undersigned understands that all
shares properly tendered will be purchased at the purchase price, net to the
seller in cash, without interest, upon the terms and subject to the conditions
of the tender offer, including the proration provisions, and that the Company
will return all other shares, including shares not purchased because of
proration, promptly following the expiration date.
The undersigned recognizes that under certain circumstances set forth in
the Offer to Purchase, the Company may terminate or amend the tender offer or
may postpone the acceptance for payment of, or the payment for, shares tendered
or may accept for payment fewer than all of the shares tendered hereby. The
undersigned understands that certificate(s) for any shares delivered herewith
but not tendered or not purchased will be returned to the undersigned at the
address indicated above. The undersigned recognizes that the Company has no
obligation to transfer any certificate for shares from the name of its
registered holder, if the Company purchases none of the shares represented by
such certificate.
The undersigned understands that acceptance of shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the tender offer. The
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undersigned acknowledges that no interest will be paid on the purchase price for
tendered shares regardless of any extension of the tender offer or any delay in
making such payment.
The check for the aggregate net purchase price for such of the tendered
shares as are purchased by the Company will be issued to the order of the
undersigned and mailed to the address indicated above.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligations or duties of the undersigned under this Letter of Transmittal shall
be binding upon the heirs, personal representatives, executors, administrators,
successors, assigns, trustees in bankruptcy and legal representatives of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable.
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SIGNATURE BOX
(Please complete Boxes A (if necessary), B and C on the following page)
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The Internal Revenue Service does not require consent to any provision of this
document other than the certifications required to
avoid backup withholding.
Please sign exactly as your name is printed
(or corrected) above, and insert your Taxpayer X___________________________
Identification Number or Social Security (Signature of Owner) Date
Number in the space provided below your signature.
For joint owners, each joint owner must sign. Taxpayer I.D. or SSN _______
(See Instruction 1) The signatory hereto hereby
certifies under penalties of perjury the X___________________________
statements in Box B and Box C. (Signature of Owner) Date
Taxpayer I.D. or SSN _______
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BOX A
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Medallion Signature Guarantee
(If required)
(See Instruction 1)
Name and Address of Eligible Institution: ___________________________________
Authorized Signature _______________________________________________
Title ____________________________________________________
Name ___________________________________________________
Date _________________________________,200________
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BOX B
SUBSTITUTE FORM W-9
(See Instruction 3 - Box B)
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The person signing this Letter of Transmittal hereby certifies the
following to the Company under penalties of perjury:
(i) The TIN set forth in the signature box of this Letter of Transmittal is
the correct TIN of the shareholder, or if this box [ ] is checked, the
shareholder has applied for a TIN. If the shareholder has applied for a TIN, a
TIN has not been issued to the shareholder, and either: (a) the shareholder has
mailed or delivered an application to receive a TIN to the appropriate IRS
Center or Social Security Administration Office, or (b) the shareholder intends
to mail or deliver an application in the near future (it being understood that
if the shareholder does not provide a TIN to the Company within sixty (60) days,
28% of all reportable payments made to the shareholder thereafter will be
withheld until a TIN is provided to the Company); and
(ii) Unless this box [ ] is checked, the shareholder is not subject to
backup withholding either because the shareholder: (a) is exempt from backup
withholding, (b) has not been notified by the IRS that the shareholder is
subject to backup withholding as result of a failure to report all interest or
dividends, or (c) has been notified by the IRS that such shareholder is no
longer subject to backup withholding.
(iii) Unless this box [ ] is checked, the shareholder is a U.S. Person
(that is, an individual that is a U.S. Citizen or resident; a partnership,
corporation, company or association created or organized in the United States or
under United States laws; or any estate [other than a foreign estate] or trust).
Note: Place an "X" in the box in (i), (ii) or (iii) if you are unable to
certify the statement in that item.
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BOX C
FIRPTA AFFIDAVIT
(See Instruction 3 - Box C)
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Under Section 1445(e) of the Internal Revenue Code and Treas. Reg.
1.1445-5, a United States real property holding corporation must withhold tax
equal to 10% of the amount realized with respect to certain transfers of shares
in such a corporation . To inform the Company that no withholding is required
with respect to the shareholder's shares, the person signing this Letter of
Transmittal hereby certifies the following under penalties of perjury;
(i) Unless this box [ ] is checked, the shareholder, if an individual,
is a U.S. citizen or a resident alien for purposes of U.S. income taxation,
and if other than an individual, is not a foreign corporation, foreign
partnership, foreign estate or foreign trust (as those terms are defined in
the Internal Revenue Code and Income Tax Regulations);
(ii) the shareholder's U.S. social security number (for individuals)
or employer identification number (for non-individuals) is correctly
printed in the signature box on this Letter of Transmittal; and
(iii) the shareholder's home address (for individuals), or office
address (for non-individuals), is correctly printed (or correctly
completed) on this Letter of Transmittal. If a corporation, the
jurisdiction of incorporation is ________________.
The person signing this Letter of Transmittal understands that this
certification may be disclosed to the IRS by the Company and that any false
statements contained herein could be punished by fine, imprisonment, or both.
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Tender, Signature Requirements; Delivery. After carefully reading and
completing this Letter of Transmittal, in order to tender Shares a
shareholder must sign at the "X" on the bottom of the first page of this
Letter of Transmittal and insert the shareholder's correct Taxpayer
Identification Number or Social Security Number ("TIN") in the space
provided below the signature. The signature must correspond exactly with
the name printed (or corrected) on the front of this Letter of Transmittal
without any change whatsoever. No signature guarantee is required if this
Letter of Transmittal is signed by the registered holder of the shares
exactly as the name of the registered holder appears on the certificate
tendered with this Letter of Transmittal, and payment is to be made
directly to such registered holder. If this Letter of Transmittal is not
signed by the registered holder of the Shares, a Medallion signature
guarantee on this Letter of Transmittal is required. Similarly, if Shares
are tendered for the account of a member firm of a registered national
security exchange, a member firm of the National Association of Securities
Dealers, Inc. or a commercial bank, savings bank, credit union, savings and
loan association or trust company having an office, branch or agency in the
United States (each an "Eligible Institution"), no Medallion signature
guarantee is required. In all other cases, signatures on this Letter of
Transmittal must be Medallion guaranteed by an Eligible Institution, by
completing the Signature guarantee set forth in BOX A of this Letter of
Transmittal. If any tendered Shares are registered in the names of two or
more joint holders, all such holders must sign this Letter of Transmittal.
If this Letter of Transmittal is signed by trustees, administrators,
guardians, attorneys-in-fact, officers of corporations, or others acting in
a fiduciary or representative capacity, such persons should so indicate
when signing and must submit proper evidence satisfactory to the Company of
their authority to so act. For Shares to be validly tendered, a properly
completed and duly executed Letter of Transmittal, together with any
required signature guarantees in BOX A, and any other documents required by
this Letter of Transmittal, must be received by the Company prior to or on
the Expiration Date at its address or facsimile number set forth on this
Letter of Transmittal. No alternative, conditional or contingent tenders
will be accepted. All tendering shareholders by execution of this Letter of
Transmittal waive any right to receive any notice of the acceptance of
their tender.
2. Transfer Taxes. The Company will pay or cause to be paid all transfer
taxes, if any, payable in respect of Shares accepted for payment pursuant
to the Offer.
3. U.S. Persons. A shareholder who or which is a United States citizen or
resident alien individual, a domestic corporation, a domestic partnership,
a domestic trust or a domestic estate (collectively "United States
persons") as those terms are defined in the Internal Revenue Code and
Income Tax Regulations, should complete the following:
Box B - Substitute Form W-9. In order to avoid 28% federal income tax
backup withholding, the shareholder must provide to the Company the
shareholder's correct Taxpayer Identification Number or Social Security
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Number ("TIN") in the space provided below the signature line and certify,
under penalties of perjury, that such shareholder is not subject to such
backup withholding. The TIN that must be provided is that of the registered
shareholder indicated on the front of this Letter of Transmittal. If a
correct TIN is not provided, penalties may be imposed by the Internal
Revenue Service ("IRS"), in addition to the shareholder being subject to
backup withholding. Certain shareholders (including, among others, all
corporations) are not subject to backup withholding. Backup withholding is
not an additional tax. If withholding results in an overpayment of taxes, a
refund may be obtained from the IRS.
Box C - FIRPTA Affidavit. To avoid potential withholding of tax
pursuant to Section 1445 of the Internal Revenue Code, each shareholder who
or which is a United States Person (as defined Instruction 3 above) must
certify, under penalties of perjury, the shareholder's TIN and address, and
that the shareholder is not a foreign person. Tax withheld under Section
1445 of the Internal Revenue Code is not an additional tax. If withholding
results in an overpayment of tax, a refund may be obtained from the IRS.
4. Withholding on Non-United States Holder. Certain "exempt recipients"
(including, among others, all corporations and certain Non-United States
Holders (as defined below)) are not subject to these backup withholding
requirements discussed in Instruction 3. For a Non-United States Holder to
qualify as an exempt recipient, that shareholder must submit an IRS Form
W-8BEN (or other applicable IRS Form), signed under penalties of perjury,
attesting to that shareholder's exempt status. Such statement can be
obtained from the Depositary. Even if a Non-United States Holder has
provided the required certification to avoid backup withholding, the
Depositary will withhold United States federal income taxes equal to 30% of
the gross payments payable to a Non-United States Holder or his agent
unless the Depositary determines that a reduced rate of withholding is
available under a tax treaty or because payments are received in connection
with the sale of stock in a United States real property holding
corporation, or that an exemption from withholding is applicable because
such gross proceeds are effectively connected with the conduct of a trade
or business within the United States. In general, a "Non-United States
Holder" is any shareholder that for United States federal income tax
purposes is not (i) a citizen or resident of the United States, (ii) a
corporation created or organized in or under the laws of the United States
or any State or the District of Columbia, (iii) an estate the income of
which is subject to United States federal income taxation regardless of the
source of such income, or (iv) a trust (a) if a court within the United
States is able to exercise primary supervision over the administration of
the trust and (b) one or more U.S. persons have the authority to control
all substantial decisions of the trust. In order to obtain a reduced rate
of withholding pursuant to a tax treaty, a Non-United States Holder must
deliver to the Depositary before the payment a properly completed and
executed IRS Form W-8BEN (or a successor form). In order to obtain an
exemption from withholding on the grounds that the gross proceeds received
in the tender offer are effectively connected with the conduct of a trade
or business within the United States, a Non-United States Holder must
deliver to the Depositary a properly completed and executed IRS Form W-8ECI
(or a successor form). The Depositary will determine a shareholder's
withholding status based on such forms or other statements, unless facts
and circumstances indicate that such reliance is not warranted. A
Non-United States Holder that qualifies for an exemption from withholding
by delivering IRS Form W-8ECI generally will be required to file a United
States Federal income tax return and will be subject to United States
Federal income tax on income derived from the sale of shares pursuant to
the tender offer in the manner and to the extent described herein as if it
were a United States Holder (and for certain corporate holders and under
certain circumstances, the branch profits tax). A Non-United States Holder
may be eligible to obtain a refund of all or a portion of any tax withheld.
Non-United States Holders are urged to consult their own tax advisors
regarding the application of United States federal income tax withholding,
including eligibility for a withholding tax reduction or exemption, and the
refund procedure.
5. Additional Copies of Offer to Purchase and Letter of Transmittal.
Requests for assistance or additional copies of the Offer to Purchase and
this Letter of Transmittal may be obtained from the Company.
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